Ninth Circuit affirms district court’s grant of summary judgment to defendants in copyright infringement action, holding that plaintiff artist’s depiction of two dolphins crossing underwater was idea first found in nature and not protectable, and protectable elements forming plaintiff’s “thin” copyright were not substantially similar to defendant’s painting.

Plaintiff Peter A. Folkens — a self-described “world-renowned artist, illustrator, photographer, researcher and author, best known for his work in the field of marine mammals” — sued defendants, artist Robert T. Wyland and related entities, for copyright infringement, alleging that Wyland’s painting “Life in the Sea” infringed on Folkens’ black and white illustration of two dolphins crossing each other. Folkens created the pen and ink illustration, alternately titled “Two Tursiops Truncatus” and “Two Dolphins,” in 1979, depicting two dolphins crossing each other, one swimming vertically and one swimming horizontally, and registered his illustration with the U.S. Copyright Office. Wyland created his painting, an underwater scene done in color and depicting, among other aquatic wildlife, three dolphins, two of which are crossing, in 2011. In his copyright infringement suit, Folkens alleged that, in the painting, Wyland copied the image of dolphins crossing from Two Dolphins.

Applying the Ninth Circuit’s extrinsic test of substantial similarity, which first dissects the works to determine what elements are original and protectable, then analyzes substantial similarity between these protectable elements “as measured by external, objective criteria,” the district court concluded that the main element of similarity between the works was the positioning of the two dolphins crossing in different directions, and that natural positioning and physiology were not protectable under Ninth Circuit precedent, citing Satava v. Lowry. The district court noted that the pose in both works “results from dolphin physiology and behavior since dolphins are social animals, they live and travel in groups, and for these reasons, are commonly depicted swimming close together.” Because the element of similarity between the works was not a protectable element, the district court concluded that no reasonable juror could find substantial similarity and therefore granted summary judgment to Wyland.

On appeal, the Ninth Circuit began by recounting the general tests for infringement, copying and extrinsic substantial similarity applied by the district court, noting that only the extrinsic prong of the substantial similarity test is considered on a motion for summary judgment. The court quickly dispatched Folkens’s argument that the dolphins in his illustration were not exhibiting behavior shown in nature — since the dolphins in the photos that Two Dolphins was based on had been posed by professional animal trainers, noting the absurdity of this argument by analogizing to a situation where an animal trainer gets a dog to sit still while a painting is done, “but no one would argue that the position of a dog sitting was not an idea first expressed in nature.”

The court took the opportunity to reaffirm the principle, first expressed in Satava, that ideas “first expressed in nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.” In Satava, plaintiff claimed copyright infringement of lifelike, glass-in-glass sculptures of jellyfish rising in the ocean. In overturning a district court’s injunction against defendant, the Ninth Circuit held that the depiction of the jellyfish was not protectable, since many jellyfish possess the same body parts and the pose was a common one first expressed in nature.

The courts in both Satava and Folkens made sure to point out that an artist may still obtain copyright protection by varying other elements of the depiction, such as “the background, lighting, perspective, animal pose, animal attitude, and animal coat and texture.” Such variation, though, earns only a narrow degree of protection or “thin” copyright, requiring a high degree of similarity to prove infringement.

The court found that the elements in the two works were markedly different. Folkens owned only a thin copyright in his Two Dolphins illustration, covering the expression “in dark water, with ripples of light on one dolphin, in black and white.” Wyland’s painting was in color, utilized different lighting and featured a third dolphin and additional aquatic wildlife and imagery. Since the protectable elements of Folkens’ work were not substantially similar to Wyland’s painting, the court held there was no infringement and affirmed the district court’s grant of summary judgment for the defendants.

In reaffirming the rule that ecological ideas first expressed in nature are not protectable under copyright law, the Ninth Circuit noted that copyright is intended to protect and encourage expression, “not to give to the first artist showing what has been depicted by nature a monopoly power to bar others from depicting such a natural scene.” The court also listed some additional examples of “iconic depictions of animals” that are “within the common heritage of mankind,” including ants marching in a straight line, geese flying in a V formation, a mother duck being followed by her ducklings, a hummingbird hovering near a flower and bats hanging upside down in a cave.